Could Fayetteville release a police officer's suspension records with the proposed redactions under Arkansas FOIA?

Plain-English summary

Fayetteville Assistant City Attorney Blake Pennington asked AG Leslie Rutledge whether releasing investigative and disciplinary records about a police officer's suspension, with proposed redactions, was consistent with Arkansas FOIA. Footnote 20 says the requested documents included personal details about third parties, including an unrelated arrestee, a family in a custody dispute discussed in a body-camera audit, and a minor child.

The AG said the planned release was consistent with FOIA "for the most part," but flagged redactions in both directions.

On classification and the four-part test. The AG could not say the custodian's classification of the records as employee-evaluation records was incorrect. The first three disclosure conditions appeared met, and she believed the misconduct reflected in these records created a compelling public interest. She cited prior opinions concerning departmental rules "aimed at conduct which could undermine the public trust and/or compromise public safety" and the enhanced interest in law-enforcement misconduct involving the public.

On redactions. Footnote 16 says the custodian redacted references to earlier discipline from a suspension notice. If that notice as a whole formed the basis for the latest suspension, those redactions may be inconsistent with FOIA. Footnote 20 says additional redactions may be necessary for an unrelated arrestee's birth date, family information in a body-camera audit, and a minor's name and guardianship information. The AG reached no definitive conclusion about release of those third-party details.

The AG noted that "[a] definitive opinion regarding the release of this information is outside the scope of my review under section 25-19-105(c)(3)." She cited McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989), for the possibility that constitutional privacy can supersede FOIA disclosure requirements for constitutionally protectable information.

Practical takeaway. The custodian's decision required a second look at the proposed redactions. The AG identified material that might have been withheld too broadly and third-party information that might need protection. She did not resolve either point definitively.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why is law-enforcement misconduct treated as a compelling public interest? The AG cited earlier opinions finding likely public interest when officers violate rules aimed at protecting public trust or safety, and an enhanced disclosure interest when misconduct occurs in interactions with the public. She believed this record reflected enough misconduct to create a compelling interest.

What does McCambridge constitutional privacy add?
The AG cited McCambridge for the rule that constitutional privacy can override FOIA disclosure requirements for constitutionally protectable information. She did not decide whether any particular third-party detail in these records met that standard.

What about the unrelated arrestee's birth date?
Footnote 20 lists the birth date among details for which additional redactions may be necessary. The AG expressly declined to give a definitive opinion on its release.

Should the body-camera audit be released at all?
The opinion mentions a body-camera audit that revealed family information. It does not decide separately whether footage itself must be released or redacted.

What if the misconduct was minor?
The AG noted that compelling public interest "is always a question of fact that must be determined in light of all the surrounding circumstances" (Op. Att'y Gen. 2006-026). Misconduct that does not implicate public trust or safety might fail the compelling-interest prong. The records here apparently reflected "a degree of misconduct sufficient to generate a compelling public interest in disclosure," but lower-level infractions could fall the other way.

What is the practical workflow for a custodian handling these records? Review the proposed redactions against the records and the four-part evaluation-record test. Footnote 16 identifies earlier discipline that may have been redacted too broadly; footnote 20 identifies third-party details that may need protection. The opinion leaves those specific calls to the custodian.

Background and statutory framework

The opinion distinguishes personnel records from employee-evaluation records, then applies Ark. Code Ann. § 25-19-105(c)(1)'s four-part release test to the internal-investigation records the custodian classified as evaluations. Thomas v. Hall supplies the evaluation-record definition.

For compelling public interest, the AG considered misconduct implicating public trust or safety and the enhanced interest in officer interactions with the public. She concluded the records reflected sufficient misconduct to warrant disclosure.

McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989), creates the constitutional-privacy backstop for records that contain constitutionally protectable information about identifiable individuals. The McCambridge analysis sits alongside the statutory FOIA framework, not within it; it can require redaction or withholding even when the statute would otherwise allow release.

Citations

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2019) (definition of public records)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation records release test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2019) (AG opinion review)
• Ark. Code Ann. § 25-19-105(c)(3) (limit of AG review scope)

Cases:

• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989)

Prior opinions referenced:

• Ops. Att'y Gen. 2014-088, 2008-090 (departmental misconduct as compelling public interest)
• Op. Att'y Gen. 2007-206 (enhanced disclosure interest in officer-public interactions)
• Op. Att'y Gen. 2006-026 (compelling-public-interest as fact question)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2020-028

June 17, 2020

Blake E. Pennington
Assistant City Attorney
113 West Mountain, Suite 302
Fayetteville, AR 72701

Dear Mr. Pennington:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the records custodian, is based on Ark. Code Ann.§ 25-19-105(c)(3)(B)(i) (Supp. 2019). This subdivision authorizes the custodian, requester, or the subject of certain employee-related records to seek an opinion from this office stating whether the custodian's decision regarding the release of such records is consistent with the FOIA.

Your correspondence indicates that the City of Fayetteville Police Department has received a request under the FOIA for copies of the investigative report for a citizen's complaint, along with any disciplinary documentation associated with the outcome of the investigation. You have attached several documents that you believe are responsive to the request and that you intend to release with redactions. The officer who is the subject of the records has asked for the Attorney General's review of the custodian's release decision. In this regard, you ask whether your decision to release the records as redacted is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Having reviewed the records at issue, it is my opinion that the custodian's decision to release the records is consistent with the FOIA for the most part. I have

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Blake E. Pennington
Assistant City Attorney
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identified a few pieces of information that may need to be redacted, as well as several redactions that may not be consistent with the FOIA. 1

DISCUSSION

I. General standards governing disclosure.

A document must be disclosed in response to a FOIA request if all three of the following elements are met. First, the FOIA request must be directed to an entity subject to the act. Second, the requested document must constitute a public record. Third, no exceptions allow the document to be withheld.

The first two elements appear to be met. The request was made to the Fayetteville Police Department, which is a public entity subject to the FOIA. Moreover, the request appears to pertain to public records. 2 Because the records are held by a public entity, they are presumed to be public records, 3 although that presumption is rebuttable. 4 Accordingly, the analysis proceeds to the third element, that is, whether any exceptions preclude disclosure.

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two groups of items normally found in employees' personnel files. 5 For purposes of the FOIA, these items can usually be 1 See infra n.16 and n.20.

2
The FOIA defines public records as "writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium, required by law to be kept or otherwise kept, and that constitute a record of the performance or lack of performance of official functions ... carried out by a public official or employee .... " Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2019).

>Id.

4
See Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 440-41, 260 S.W.3d 718, 722 (2007) ("the presumption of public record status established by the FOIA can be rebutted if the records do not otherwise fall within the definition found in the first sentence, i.e., if they do not 'constitute a record of the performance or lack of performance of official functions,'" citing Op. Att'y Gen. 2005-095).

5
This office and the leading commentators on the FOIA have observed that personnel files usually include: employment applications; school transcripts; payroll-related documents, such as information about reclassifications, promotions, or demotions; transfer records; health and life

Blake E. Pennington
Assistant City Attorney
Opinion No. 2020-028
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divided into two mutually exclusive groups: "personnel records" 6 or "employee evaluation or job performance records." 7 The test for whether these two types of documents may be released differs significantly.

When custodians assess whether either of these exceptions applies to a particular record, they must make two determinations. First, they must determine whether the record meets the definition of either exception. Second, assuming the record does meet one of the definitions, the custodian must apply the appropriate test to determine whether the FOIA requires that record be disclosed.

The information you forwarded to me indicates that the custodian has determined that the records at issue constitute the employee's evaluation record. I will therefore limit my discussion to the test for disclosure relating to those types of records.

The FOIA does not define "employee evaluation or job performance records." 8 But the Arkansas Supreme Court has adopted this office's view that the term refers to any records (1) created by or at the behest of the employer (2) to evaluate the employee (3) that detail the employee's performance or lack of performance on the job.9 This exception includes records generated while investigating allegations of

insurance forms; performance evaluations; recommendation letters; disciplinary-action records; requests for leave-without-pay; certificates of advanced training or education; and legal documents, such as subpoenas. E.g., Op. Att'y Gen. 97-368; John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, THE ARK/\NSAS FREEDOM OF INFORMATION Acr 205-06 (Arkansas Law Press, 6th ed., 2017). 6 Ark. Code Ann. § 25-19-105(b )( 12): "It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter ....
[p ]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." 7 Ark. Code Ann. § 25-19-105(c)(I): "Notwithstanding subdivision (b)(l2) of this section, all employee evaluation or job performance records, including preliminary notes and other materials, shall be open to public inspection only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure."

8
I wi 11 refer to this group of records as "employee-evaluation records." 9 Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. See also Ops. Att'y Gen. 2009-067, 2008-004, 2007-225, 2006-038, 2005-030, 2003-073, 98-006, 97-222, 95-351, 94-306, and 93-055.

Blake E. Pennington
Assistant City Attorney
Opinion No. 2020-028
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employee misconduct that detail incidents that gave nse to an allegation of misconduct. 10

If a document meets the above definition, the document cannot be released unless all the following elements have been met:

1. The employee was suspended or terminated (i.e., level of discipline);
2. There has been a final administrative resolution of the suspension or
   termination proceeding (i.e., finality);
3. The records in question formed a basis for the decision made in that
   proceeding to suspend or terminate the employee (i.e., basis); and
4. The public has a compelling interest in the disclosure of the records
   in question (i.e., compelling interest). 11

As for the final prong, the FOIA never defines the key phrase "compelling public interest." But the leading commentators on the FOIA, referring to this office's opinions, have offered the following guidelines:

[I]t seems that the following factors should be considered in determining whether a compelling public interest is present: (I) the nature of the infraction that led to suspension or termination, with particular concern as to whether violations of the public trust or gross incompetence are involved; (2) the existence of a public controversy related to the agency and its employees; and (3) the employee's position within the agency. In short, a general interest in the performance of public employees should not be considered compelling, because that concern, at least theoretically, always exists. However, a link between a given public controversy, an agency associated with the controversy in a specific way, and an employee within the agency who commits a serious breach of public trust should be sufficient to satisfy the "compelling public interest" requirement. 12

10
Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.

11
Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065.

12
Watkins, et al., at 238-39 (footnotes omitted).

Blake E. Pennington
Assistant City Attorney
Opinion No. 2020-028
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These commentators also note that "the status of the employee" or "his rank within the bureaucratic hierarchy" may be relevant in determining whether a "compelling public interest" exists, 13 which is always a question of fact that must be determined, in the first instance, by the custodian after he considers all the relevant information.

The primary purpose of this exception is to preserve the confidentiality of the formal job-evaluation process in order to promote honest exchanges m the employee/employer relationship. 14

III. Application.

It appears, based on the limited information before me, that the custodian has determined that the records intended for release are the employee's evaluation records that were created at the behest of the Fayetteville Police Department as part of an internal investigation that led to the officer's suspension. Having reviewed the records, I cannot definitively say this determination is incorrect. As this office has consistently opined, records in an internal investigation file that have been generated at the behest of an employer in the course of investigating alleged employee misconduct constitute "employee evaluation/job performance records" within the meaning of the FOIA. 15 The releasability of the records at issue must, therefore, be evaluated under the above four-part test.

In this particular instance, it seems clear that the first three elements are met. 16 As for the fourth-the "compelling interest" element-this office has consistently opined that, with respect to allegations of misconduct by law enforcement officers, a compelling public interest likely exists in information reflecting a violation of

13
Id. at 237 (noting that "[a]s a practical matter, such an interest is more likely to be present when a high-level employee is involved than when the [records] of 'rank-and-file' workers are at issue").

14
Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223.

15
See Op. Att'y Gen. 2008-007 (and opinions cited therein).

16
In your correspondence, you explain that you have redacted information from the '"Written Reprimand and Suspension" notice that references previous disciplinary actions that did not result in suspension or termination of the officer. Whether this information should be redacted is a question of fact, and based on the limited information before me, I am not in a position to question these redactions. I will note, however, that if this document as a whole formed a basis for the most recent suspension-in other words, if the suspension was the cumulative result of all the officer's prior offenses contained in the record and just not the most recent offenses-then these redactions may not be consistent with the FOIA.

Blake E. Pennington
Assistant City Attorney
Opinion No. 2020-028
Page 6

departmental rules aimed at conduct which could undermine the public trust and/or compromise public safety. 17 Moreover, an enhanced interest in disclosure exists in instances of law enforcement misconduct in interactions with the public. 18 Thus, while the existence of compelling public interest in the release of particular records is always a question of fact that must be determined in light of all the surrounding circumstances, 19 I believe the records at hand reflect a degree of misconduct sufficient to generate a compelling public interest in disclosure.

Because it appears that the conditions under section 25-19-105( c )( 1) for release of these employee-evaluation records have been met, I believe that your decision to release the records is for the most part consistent with the FOIA. 20

Sincerely,

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LESLIE RUTLEDGE
Attorney General

17
E.g., Ops. Att'y Gen. 2014-088, 2008-090 (and opinions cited therein).

18
E.g., Op. Att'y Gen. 2007-206.

19
See Op. Att'y Gen. 2006-026 (and opinions cited therein).

20
Some additional redactions may be necessary. The requested documents reveal the personal information of multiple individuals, i.e., the birth date of an individual arrested by the officer in an incident unrelated to the request; the personal information of a family involved in a custody dispute, which was revealed in an audit of the officer's body camera; and the name of a minor child and information regarding the guardianship of that child. A definitive opinion regarding the release of this information is outside the scope of my review under section 25-19-105( c )(3). I will simply note that the constitutional right of privacy can supersede the specific disclosure requirements of the FOIA, at least with regard to constitutionally-protectable information. See McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989).